Daniel Ray Parisher v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00046-CR

Daniel Ray Parisher, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT

NO. 5477, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant Daniel Ray Parisher appeals his conviction for the possession of an

immediate precursor, pseudoephedrine, with the intent to unlawfully manufacture a controlled

substance, to wit: methamphetamine. See Tex. Health & Safety Code Ann. § 481.124 (a)(2)

(West Supp. 2008). Appellant waived trial by jury and entered an "open" plea of guilty in a

bench trial. The trial court assessed his punishment at eleven years in the Institutional Division

of the Texas Department of Criminal Justice.

POINTS OF ERROR

Appellant advances eight points of error, all claiming that the trial court abused its

discretion in denying the pretrial motion to suppress evidence for various reasons. (1)

PROCEDURAL HISTORY

The indictment filed on August 4, 2005, alleged in pertinent part that appellant:

on or about the 14th day of January 14, 2005, in the County of San Saba and the

State of Texas did then and there with intent to unlawfully manufacture a controlled

substance, to wit: methamphetamine, possess an immediate percursor, to wit:

ephedrine or pseudoephedrine. (2)

Appellant's pretrial motion to suppress evidence was heard by the trial court on

March 17, 2006. The trial court denied the motion on August 4, 2006. Upon request, the trial court

in open court on September 8, 2006, made findings of facts and conclusions of law. See State

v. Oages , 210 S.W.3d 643, 644 (Tex. Crim. App. 2006); State v. Cullen , 195 S.W.3d 696, 699

(Tex. Crim. App. 2006). On May 7, 2007, appellant waived trial by jury and entered an open plea

of guilty to the indictment before a different district judge. Appellant judicially confessed in writing

to the offense charged--"Possession of certain chemical [pseudoephedrine] with intent to

manufacture a controlled substance." The court reporter's record of this guilty plea proceeding, if

any, is not in the appellate record. The judicial confession alone is sufficient to satisfy the statutory

evidence requirement as to felony guilty pleas before the trial court. See Tex. Code Crim. Proc. Ann.

art. 1.15 (West 2005); Dinnery v. State , 592 S.W.2d 343, 353 (Tex. Crim. App. 1979) (op. on reh'g).

If other evidence was introduced, it is not a part of this record. There is certainly no chemical

analysis evidence or a showing of any evidence illegally seized or the date thereof.

This guilty plea proceeding, being a unitary trial, (3) was recessed and recalled

on October 25, 2007, before the original trial judge, who assessed appellant's punishment at

eleven years' imprisonment.

All of appellant's issues turn on the suppression hearing, so we examine the ever-

developing law regarding pretrial motions to suppress evidence. See Tex. Code Crim. Proc. Ann.

art. 28.01(6) (West 2006).

THE BURDEN OF PROOF

When a defendant seeks to suppress evidence by a pretrial motion on the basis

of the Fourth Amendment to the United States Constitution, he, as the movant, bears the burden

of producing evidence that defeats the presumption of proper police conduct. Amador v. State ,

221 S.W.3d 666, 672 (Tex. Crim. App. 2007); Russell v. State , 717 S.W.2d 7, 9 (Tex. Crim. App.

1986). A defendant meets this initial burden of proof by establishing that a search or seizure

occurred without a warrant. Ford v. State , 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); Bishop

v. State , 85 S.W.3d 819, 822 (Tex. Crim. App. 2002); Russell , 717 S.W.2d at 9 . At this point, the

burden shifts to the State to prove that the search or seizure was reasonable without a warrant

under the totality of the circumstances. Russell , 717 S.W.2d at 9 . If, however, the State introduces

or produces evidence of an executed search warrant based on probable cause in its underlying

affidavit, the burden shifts back to the defendant to show the invalidity of the search warrant. Ford ,

158 S.W.2d at 492; Russell , 717 S.W.2d at 9 ; see also Davidson v. State , 249 S.W.3d 709, 717-18

(Tex. App.--Austin 2008, pet. ref'd).

THE TRIER OF FACT

The trial court is the trier of fact at a pretrial hearing on a motion to suppress

evidence. Wiede v. State , 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); Allridge v. State ,

850 S.W.2d 471, 492 (Tex. Crim. App. 1991). The trial court is free to believe or disbelieve all or

any part of a witness's testimony, even if the testimony is not controverted. State v. Ross , 32 S.W.3d

853, 855 (Tex. Crim. App. 2000). In reviewing the trial court's decision, we do not engage in our

own factual review. Romero v. State , 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

STANDARD OF REVIEW

We generally review a trial court's ruling on a pretrial suppression motion for an

abuse of discretion. State v. Dixon , 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); Swain v. State ,

181 S.W.3d 359, 365 (Tex. Crim. App. 2005); Balentine v. State , 71 S.W.3d 763, 768 (Tex. Crim.

App. 2002). The trial court's ruling should be upheld so long as it is within the zone of reasonable

disagreement. See Dixon , 206 S.W.3d at 590 ; Montgomery v. State , 810 S.W.2d 372, 391

(Tex. Crim. App. 1990) (op. on reh'g). This is the rather common standard of review regarding the

admissibility of evidence.

When we review a trial court's ruling on a motion to suppress, we give great

deference to the trial court's determination of historical facts supported by the record, while we

review the application of the law to the facts de novo . Torres v. State , 182 S.W.3d 899, 902

(Tex. Crim. App. 2005); Maxwell v. State , 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State

v. Ross , 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000); Carmouche v. State , 10 S.W.3d 323, 327 ;

Guzman v. State , 955 S.W.2d 85, 85-89 (Tex. Crim. App. 1997). (4)

We must uphold the trial court's ruling if it is supported by the record and correct

under any theory of law applicable to the case, even if the trial court gave the wrong reason for

its ruling. State v. Stevens , 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendiarz v. State ,

123 S.W.3d 401 , 404 (Tex. Crim. App. 2003); State v. Steelman , 93 S.W.3d 102, 107 (Tex. Crim.

App. 2002).

A SPECIALIZED OBJECTION

A pretrial motion to suppress evidence under article 28.01(6) (5) is nothing more than

a specialized objection to the admissibility of evidence. Galitz v. State , 617 S.W.2d 949 , 952

n.10 (Tex. Crim. App. 1981). Therefore, it must meet the specificity requirement for an objection.

Tex. R. App. P. 33.1(a)(1)(A); Flores v. State , 129 S.W.3d 169, 171 (Tex. App.--Corpus Christi

2004, no pet.); Carroll v. State , 911 S.W.2d 210, 218 (Tex. App.--Austin 1995, no pet.); Mayfield

v. State , 800 S.W.2d 932, 935 (Tex. App.--San Antonio 1990, no pet.). (6)

In Martinez v. State , 17 S.W.3d 677 (Tex. Crim. App. 2000), the Texas Court

of Criminal Appeals recognized the specificity requirement as it applied to suppression motions.

There, the court held that the defendant had procedurally defaulted the issues he raised on appeal

because the claims had not been made in his motion to suppress nor had he advanced any argument

on those issues in the trial court. Id . at 682-83. It is commonly required that the motion to suppress

evidence must specify with particularity the grounds upon which the motion is based, and the failure

to assert a particular ground operates as a waiver of the right to challenge the admissibility of the

evidence on that ground. W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment

§ 11.2(a) (4th ed. 2004). Martinez was cited as an illustration. Id . Professor LaFave suggested that

attorneys should avoid "shot gun" motions to suppress with conclusory language such as "illegal

arrest" and "violation of constitutional rights," and "specify exactly why arrests or resulting searches

are invalid." Id .

In Swain , 181 S.W.3d at 365 , the court held that because the allegations in the

suppression motion were global in nature and contained little more than citation to constitutional and

statutory provisions, they were not sufficiently specific to preserve the argument later made on

appeal. S ee also Rothstein v. State , 267 S.W.3d 366, 373 (Tex. App.--Houston [14th Dist.] 2008,

pet. ref'd) (holding that "generic" allegations in suppression motion were not specific enough to

preserve argument advanced for appellate review). (7)

In his dissent in Torres v. State , Judge Holcomb noted that the defendant had filed

a boiler plate pretrial motion to suppress "any and all evidence seized or obtained as a result

of illegal acts." 182 S.W.3d at 904 . He observed that the motion failed to specify what evidence

the defendant wanted to suppress asserting only that the evidence in question was the "fruit" of a

warrantless arrest, citing the Fourth Amendment. Id . Judge Holcomb believed that the failure to

specify what evidence the defendant wanted suppressed would have justified the trial court

in denying the suppression motion on that basis alone. Id . at 904 n.3 (citing Johnson v. State ,

548 S.W.2d 700, 706 (Tex. Crim. App. 1977) (appellate court perceives no error in the trial court's

denial of motion to suppress "[s]ince the appellant fails to state what evidence, if any, was obtained

as a result of the alleged unlawful arrest. . . .")).

Appellant's motion to suppress evidence is a boiler plate motion in general and

conclusory language. It does not specify what particular evidence he wanted suppressed. Citing

constitutional and statutory provisions, appellant alleged a search of his residence by virtue of a

warrant, a warrantless search (apparently of his house), and his unlawful and warrantless arrest. He

wanted "any and all tangible evidence," "evidence that may be used at trial," and "evidence"

resulting from his "arrest" to be suppressed. Undoubtedly, the trial court could have properly denied

the motion for the lack of specificity alone. Johnson , 548 S.W.2d at 706 .

Nevertheless, the trial court conducted a hearing, and we must look to the

record to determine what argument or issues, if any, were raised showing a violation of the

Fourth Amendment.

SUPPRESSION HEARING

At the commencement of the hearing on appellant's motion to suppress evidence, it

appears clear that the parties understood that appellant was complaining of evidence obtained in

violation of the Fourth Amendment by (1) a search of his residence by virtue of a search warrant,

(2) a warrantless search, and (3) appellant's unlawful arrest. Appellant abandoned any allegations

in the motion as to involuntary statements.

At the outset, appellant's counsel suggested a stipulation as to some of the facts, but

the State rejected the suggestion, claiming that it would shift the burden of proof. The trial court

then made clear that the initial burden of going forward with the evidence at the hearing would be

on appellant, the movant. Appellant called only two witnesses, and their testimony was limited to

the warrantless entry into appellant's residence. For whatever reason, neither party offered testimony

as to any search by virtue of a search warrant.

The suppression hearing reflects that on some undisclosed night in January 2005, (8)

Officer Allen Brown of the City of San Saba received a telephone tip from an unidentified employee

of the Super S grocery in San Saba about suspicious activity by two individuals who had parked a

pickup truck at the store. Brown was informed that one individual came into the store "and bought

several items that were suspicious," and then the other person entered the store and bought "nearly

the same items." The nature of the items was not revealed. Before the pickup truck left the store's

parking lot, its license plate was noted and given to Officer Brown. His investigation showed that

the truck was registered to Sandra and Daniel Parisher.

Officer Brown contacted Deputy Sheriff David Jenkins of San Saba County who

knew where the Parishers lived. The officers had no arrest or search warrant, but decided to use

the "knock and talk" approach. They drove from San Saba to Cherokee, and then further on a county

road, turning onto the unimproved road or drive leading up to the Parishers' rural home. They had

driven approximately thirty miles. Officer Brown recalled that the gate was open to the Parishers'

property and that he did not see any "no trespassing signs." Brown observed that it was nighttime.

The officers parked their vehicle and approached the house and its front door. There

was no testimony about barriers or fences surrounding the house. Officer Brown commenced

knocking on the front door while Deputy Jenkins "covered" him from the side of the door from

which position he could see through a window a man other than Parisher. The door appeared

"loose," (9) so Officer Brown knocked to the side of the door. When Sandra Parisher answered the

knock and opened the door, Officer Brown identified himself and Deputy Jenkins as officers

and asked to come in and "talk about some information." He stated that Sandra Parisher looked

at her husband, "stuttered for a second," then said, "yes, you can" or "come on in." Officer Brown

denied forcing his way into the house or threatening anyone in any way. His testimony was that

Mrs. Parisher voluntarily consented to their entry into the residence.

Officer Brown stated that after he and Deputy Jenkins were three or four feet inside

the dining room with Sandra Parisher's consent, he was able to see in "plain view" on a table in the

next room, items such as "multiple mason jars, some open, containing things, alcohol, clear--clear

tubing material, multiple coffee filters, matches which had been cut with the heads cut off of

them and latex gloves." Later, Officer Brown, who had been a peace officer for almost ten years

and had handled narcotic investigations, described the items seen as "multiple items consistent with

paraphernalia used to manufacture methamphetamine." Again describing the items Officer Brown

stated that the "cut matches, the mason jars, the way they were laid at the table with working tools,

the coffee filters spread out on the coffee table like they were--those items literally jump out at

you when they're in the order that they're in." (10) Other than Officer Brown's personal observations,

there was no testimony of a search or seizure of any item. After the observations, Officer Brown

testified that the officers made a protective sweep of the house because another man had been seen

in the house before the officers entered. Sandra Parisher first denied that anyone else was present,

then acknowledged a "friend" was in the house. The officers found a man named Napoles on

the commode in the bathroom with undescribed items in the commode. Appellant, his wife, and

Napoles were detained at the time, but what action was taken thereafter with regards to appellant

and others who were detained is not revealed. There is nothing in the record to show any search

or pat-down of appellant and the other individuals or that any items of evidence were obtained.

Officer Brown testified that he telephoned the narcotic officers, but he made clear that he was not

present if any search by warrant took place. What action, if any, was taken with regard to the items

personally observed by Officer Brown is not reflected.

After Officer Brown's testimony, appellant urged that the burden of proof had

shifted to the State, but the trial court ruled no search had been established. Appellant then testified

that about 9:00 p.m. on a night in January 2005, there was a knock at the door of his small rural

home. He thought it was a joke when a voice stated that the visitors were "Officer Brown and

Deputy Jenkins." As appellant recalled, Officer Brown entered the house before appellant's wife

could open the door, stating that it was cold outside, and asking to come in. Appellant related that

neither he nor his wife gave consent for entry into their home. Appellant said that Deputy Jenkins

entered behind Officer Brown with his pistol drawn and placed the pistol near appellant's head.

Appellant took the position that the officers could not see into the next room

from their vantage point in the living room. Appellant was not asked about the items that the officers

claimed to have seen in "plain view." Questions were asked about cattle guards, gates, and signs.

Appellant testified that there were several "no trespassing signs" on the approach to his property,

that he left the gate open that night so Napoles, a friend, could enter the property, and that neighbors

came to the front door from time to time. Appellant testified that the acreage upon which the house

was located was partially in San Saba county and partially in Llano county, and his mailing address

had been recently changed from Llano to Cherokee, Texas. Appellant did not testify about any

subsequent search by warrant.

Officer Brown was briefly recalled as a witness. At the conclusion of his

testimony, the trial court inquired if the State had evidence to offer. When the State indicated it

had none to offer, the trial court called on appellant's counsel for argument. There were no formal

announcements of "resting" or "closing." Except for brief arguments, the suppression hearing

terminated. No search warrant or underlying affidavit were marked for identification, offered,

or introduced into evidence. There was no testimony about any search by virtue of a warrant or that

there were any "fruits" of any such search if a warrant was executed. The suppression hearing

furnishes the only evidentiary basis for appellant's contentions.

FINDINGS AND CONCLUSIONS

The suppression hearing was held on March 17, 2006. The motion to suppress

was denied on August 4, 2006. The trial court filed its findings of fact and conclusions of law on

September 6, 2006, as follows:

(1) The Court finds that the officers did not observe any "no trespassing" signs

or any other notice of privacy. The Court finds that no such signs were

readily visible. [ (11) ] The Court concludes that no trespass occurred.

(2) The Court finds that Sandra Parisher had an equal right of control over the

subject premises.

(3) The Court finds that Sandra Parisher voluntarily admitted the officers into the

residence.

(4) The Court finds that evidence was observed in plain view upon the officers'

entry into the premises.

(5) The Court finds that a third subject had been observed but was absent from

the front room of the house upon the officers' entry.

(6) The Court concludes that therefore a safety sweep of the house was justified

which yielded the third subject and led to additional contraband which the

Court finds was in the plain view of the officers on the further sweep of the

house.

(7) The Court finds that the Parisher residence is located at least in part in San

Saba County.

(8) The Court finds that probable cause existed for issuance of the search warrant

by Judge Leslie Dawson.

(9) The Court finds that there was no locked gate or other exclusion indicia

indicating an expectation of privacy beyond that which would allow the

officers to approach the house.

There were no objections to these findings and conclusions. Appellant made no

request for additional findings. We observe, however, that there is no support in this record for

the finding that in their protective sweep, the officers saw "additional contraband." Further, as

noted, there is no evidence of a search warrant or its underlying affidavit being introduced or being

a part of this record. The trial court's finding and conclusion that probable cause existed for the

issuance of a search warrant is not supported by this record. We cannot give credence to findings

and conclusions as to either "additional contraband" or the existence of "probable cause for the

issuance of a search warrant."

The State has attached to its brief an affidavit and search warrant issued at 1:15 a.m.

on January 14, 2005. There is nothing to show that the search warrant was ever executed and

no testimony that any items were found and seized. Moreover, affidavits, documents, exhibits, and

statements attached to appellate briefs are not evidence and cannot be considered by an appellate

court on review. Cook v. State , 741 S.W.2d 928, 938-39 (Tex. Crim. App. 1987); Webber v. State ,

21 S.W.3d 726, 731 (Tex. App.--Austin 2000, pet. ref'd); Miranda v. State , 813 S.W.2d 724, 738

(Tex. App.--San Antonio 1991, pet. ref'd). Further, assertions in briefs not supported by the record

cannot be accepted as fact. Vanderbilt v. State , 629 S.W.2d 709, 717 (Tex. Crim. App. 1981). (12)

Moveover, the simple fact that there was "probable cause" for the issuance of a search warrant is

meaningless here without a showing that the warrant was actually issued, executed, and that certain

"fruits" were thereby obtained.

Because the motion to suppress was not relitigated by the parties during trial, our

review of the trial court's ruling is limited to the evidence that was before the court during the

pretrial suppression hearing. See Rangel v. State , 250 S.W.3d 96, 97-98 (Tex. Crim. App. 2008);

Weatherred v. State , 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Rachal v. State , 917 S.W.2d

799, 809 (Tex. Crim. App. 1996) ("[I]n determining whether a trial court's decision is supported

by the record, we generally consider only the evidence adduced at the suppression hearing

because the ruling was based on it rather than evidence introduced later."). "Perhaps the most

basic characteristic of the appellate record is that it is limited to matters before the trial court."

43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice And Procedure

§ 43.306 (2d ed. 2001).

THE PLAIN VIEW DOCTRINE

The Fourth Amendment to the United States Constitution protects against

unreasonable searches and seizures. U.S. Const. amend. IV; Minnesota v. Carter , 525 U.S. 83, 88

(1979). The Fourth Amendment protects people and not places. Long v. State , 532 S.W.2d 591, 594

(Tex. Crim. App. 1975).

A search conducted without a warrant issued upon probable cause is per se

unreasonable subject only to a few specifically established and well-delineated exceptions. See

Reasor v. State , 12 S.W.3d 813, 817 (Tex. Crim. App. 2000); Duhig v. State , 171 S.W.3d 631,

635 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd). One of those exceptions is the "plain view"

doctrine. Texas v. Brown , 460 U.S. 730, 736 (1983). Although commonly classified as an exception

to the warrant requirement, the "plain view" doctrine is not truly an exception because neither

observation nor the seizure of property in plain view involves an invasion of privacy and is

presumptively reasonable. Walter v. State , 28 S.W.3d 538, 541 (Tex. Crim. App. 2000); see also

Horton v. California , 496 U.S. 128, 135-36 (1990). It is not a search to observe that which is open

to view. Long , 532 S.W.2d at 594 . Observing and even seizing items in plain view do not run afoul

of the Fourth Amendment. Walter , 28 S.W.3d at 541 .

The "plain view" doctrine requires only that (1) law enforcement officials have a

right to be where they are, and (2) it is immediately apparent that the item observed or seized may

constitute evidence, that is, there is probable cause to associate the item with criminal activity. (13)

Walter , 28 S.W.3d at 541 ; Ramos v. State , 934 S.W.2d 358, 365 (Tex. Crim. App. 1996); Arrick

v. State , 107 S.W.3d 710, 719 (Tex. App.--Austin 2003, pet. ref'd).

In determining whether an officer had the right to be where he was, the

Supreme Court requires that the officer not violate the Fourth Amendment in arriving at the

place from which the evidence could be plainly viewed. Horton , 496 U.S. at 136 ; see Walter ,

28 S.W.3d at 541 .

Absent express orders from the person in possession of the property not to trespass,

anyone, including a law-enforcement officer, has the right to approach the door of a residence

and knock on the door. Cornealius v. State , 900 S.W.2d 731, 733-34 (Tex. Crim. App. 1995);

Duhig , 171 S.W.3d at 635 . Appellant contends that on the occasion in question the officers

unlawfully trespassed on his property. He argues that the officers did not have consent to enter upon

the property when they had notice that entry was forbidden by "no trespassing signs" posted on the

property. See Tex. Penal Code Ann. § 30.05 (a)(1), (b)(2)(C) (West Supp. 2008). (14) The trial court

found that the officers did not observe any "no trespassing signs or any other notice of privacy and

that "no such signs were readily visible" or were reasonably likely to come to the attention of

the officers. (15) The trial court further found there were no locked gates "or other indicia indicating

an expectation of privacy." Appellant acknowledged that he had purposely left the gate open on

the night in question. There was also evidence that neighbors visited and used the drive to approach

appellant's house. There was no evidence of any barrier or fence that the officers had to cross. The

trial court concluded that the officers did not trespass onto the property. We agree that the record

supports the trial court's findings. The officers had a right to approach the front door to contact the

Parishers. Duhig , 171 S.W.3d at 635 .

While at or approaching the front door, the officers from their vantage point were

free to observe evidence or things in plain view. Id . at 636. They saw through a front window of

the Parishers' house several individuals in the living room. This "plain view" observation involved

no invasion of privacy. Id . What a person knowingly exposes to the public, even in his own home,

is not a search subject to Fourth Amendment protection. Id . A search implies a prying into hidden

places for that which is contraband. Id . When a police officer on legitimate business simply walks

up to a door and knocks, he visits the house in the same lawful way that a private citizen does. The

ensuing "knock and talk" does not implicate the Fourth Amendment or its exceptions because

no search or seizure occurs. United States v. Walters , 529 F. Supp. 2d 628, 638 (E.D. Tex. 2007)

(citing United States v. Thomas , 120 F.3d 564, 571 (5th Cir. 1997)).

Here, the suppression hearing testimony reflected a conflict as to Sandra Parisher's

consent to enter the house. Officer Brown stated that Sandra Parisher answered his knock and,

after looking at her husband, invited the officers into the house in response to Officer Brown's

request. The officer testified that no force was used and that no one was threatened. Appellant,

however, stated that neither he nor his wife gave consent for the officers to enter the house, and

that Deputy Jenkins came in with a pistol pointed at him. The trial court, as the trier of fact, found

that Sandra Parisher had equal control of the premises and voluntarily admitted the officers. The

trial court believed Officer Brown and not the appellant.

When the officers were legally three or four feet in the living room, Officer Brown

observed, in plain view, articles that he believed, based on his experience, were evidence of criminal

activity in the manufacture of methamphetamine. Thereafter, he detained the Parishers.

It is apparent from the record that Officer Brown had learned that another man

was in the house. Upon inquiry, Sandra Parisher first denied anyone else was present, but then

recanted and said a "friend" was there. Officer Brown did not know the identity of the man and did

not know if he was armed or dangerous, or whether he might destroy evidence. Officer Brown

had a reasonable belief that a protective sweep was necessary for the safety of the officers. The

sweep was brief and cursory and resulted in the discovery of the other man in the bathroom. See

Ramirez v. State , 105 S.W.3d 730, 742 (Tex. App.--Austin 2003, no pet.). The trial court found the

protective sweep was justified. The Fourth Amendment permits a properly limited protective sweep

in conjunction with an in-house arrest when the officer possesses a reasonable belief that the area

to be swept harbors an individual posing a danger to those on the current scene. Maryland v. Buie ,

494 U.S. 325, 337 (1990); Reasor , 12 S.W.3d at 816 ; see also 40 George E. Dix & Robert O.

Dawson, Texas Practice: Criminal Practice And Procedure § 12.21 (2d ed. 2001).

We grant deference to those factual findings of the trial court that are supported by

the record, and we agree, after a de novo review with the trial court's legal conclusions.

THE INITIAL POINT

In his first point of error, appellant complains that the trial court abused its discretion

in denying the motion to suppress evidence because it improperly placed the burden on appellant for

"warrantless entry and search of appellant's residence."

At no time did appellant object to having the burden of proof or persuasion placed

on him so as to preserve any error for review. See Tex. R. App. P. 33.1(a)(1)(A); Broxton v. State ,

909 S.W.2d 912, 918 (Tex. Crim. App. 1995). We have previously discussed the burden of proof in

suppression hearings. The trial court properly placed the initial burden upon appellant, the movant.

After Officer Brown's original testimony, appellant inquired if the burden had shifted to the State.

The trial court pointed out that no search or other violation of the Fourth Amendment had been

shown at that point, and that the initial burden to defeat the presumption of proper police conduct

remained with appellant. No further mention of "burden" was made.

The hearing encompassed only the warrantless entry into appellant's house with his

wife's consent as found by the trial court. The testimony did not show that any items of evidence

were ever obtained, seized, or taken into custody by the State. Officer Brown's mere observation,

"in plain view," of certain items was not a "search" in violation of the Fourth Amendment. Walter ,

28 S.W.3d at 541 . The first point of error is overruled.

POINTS OF ERROR TWO THROUGH EIGHT

In points of error two through eight, appellant's premise in each point of error is

not supported by the record before this Court. In each point, appellant urges that the trial court

abused its discretion in denying the motion to suppress evidence because the State obtained evidence

in violation of the Fourth Amendment, giving various reasons in each point. The record does

not reflect that any items of evidence were obtained, seized, or taken into custody by the State

from appellant's residence or from his person. Further, Officer Brown's observation of certain

items that he said were in plain view was not a violation of the Fourth Amendment, Horton , 496 U.S.

at 135-36 , and this would have been true even if the items had been seized, id . at 136; Walter ,

28 S.W.3d at 541 . For this reason alone, points of error two through eight are without merit.

Points of error two, three, four and eight involving a claimed trespass, an improper

"knock and talk" tactic, a lack of consent by Sandra Parisher, and an unwarranted protective sweep

were considered under our previous discussion of the "plain-view" doctrine.

Points of error five through seven involve claims that Sandra Parisher was "seized"

after the door was opened and that this tainted her consent, that both Parishers were "seized," and

that the State failed to show appellant's consent to the entry as he was a co-tenant and was present

at the time. These contentions were not set forth in appellant's motion to suppress evidence

nor were they advanced in the argument at the suppression hearing. By not raising these contentions

until his appeal, appellant has procedurally defaulted these claims. See Martinez , 17 S.W.3d

at 683 . (16) To preserve error on appeal, the point of error must comport with the objection made

at trial. See Swain , 181 S.W.3d at 367 ; Wilson v. State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

A trial objection based on one legal theory may not be used to support a different legal theory

on appeal. Rezac v. State , 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Delamora v. State ,

128 S.W.3d 344 , 363 n.11 (Tex. App.--Austin 2004, pet. ref'd). Points of error two through eight

are overruled.

The trial court did not abuse its discretion in overruling the motion to suppress

evidence. The judgment is affirmed.

John F. Onion, Jr., Justice

Before Justices Waldrop, Henson and Onion*

Affirmed

Filed: June 5, 2009

Do Not Publish

* Before John F. Onion, Jr., Presiding Judge (retired), Texas Court of Criminal Appeals, sitting by

assignment. See Tex. Gov't Code Ann. § 74.003 (b) (West 2005).

1. In his initial point of error appellant alleges that the trial court abused its discretion in

denying the suppression motion because the trial court improperly placed the burden of proof on

appellant during the entire hearing.

In the other seven points of error appellant argues that the trial court abused its discretion

in denying the motion to suppress when the hearing showed evidence was illegally obtained by

the State in violation of the Fourth Amendment to the United States Constitution and article I,

section 9 of the Texas Constitution because:

(2) the police officers trespassed onto appellant's private property, peered

through a window and "feathered, moved, or opened a door" to the residence;

(3) the police officers engaged in a coercive and improper "knock and talk"

tactic;

(4) there was a failure by the State to show by clear and convincing evidence that

appellant's wife consented to the entry of the officers into the residence;

(5) appellant's wife was "seized" for Fourth Amendment purposes when the door

was opened thereby tainting any consent given;

(6) appellant, a co-tenant with his wife, did not consent to the warrantless entry;

(7) appellant and his wife were both illegally "seized" by the officers upon their

entry into the house; and

(8) the officers conducted an improper protective sweep of the residence.

In his points of error as in his brief, appellant never tells us what evidence was "illegally

obtained" by the State.

Moreover, appellant has not advanced any argument separately or otherwise claiming

greater protection from the state constitution than that afforded by the Fourth Amendment to the

federal constitution. Thus, appellant has waived his state constitutional issues. We will not address

them. See Bell v. State , 90 S.W.3d 301, 305 (Tex. Crim. App. 2002); Balentine v. State , 71 S.W.3d

763 , 772 n.8 (Tex. Crim. App. 2002); Hulit v. State , 982 S.W.2d 431, 436 (Tex. Crim. App. 1998);

Franks v. State , 241 S.W.3d 135, 141 (Tex. App.--Austin 2007, pet. ref'd).

2. The indictment is endorsed with the label: "Possession of Certain Chemical with Intent

to Manufacture a Controlled Substance." This same description of the offense is set forth in the

formal judgment of this case.

3. There is no proper bifurcation of a unitary trial on a guilty plea in a felony case before

the trial court where a jury trial has been waived. See Barfield v. State , 63 S.W.3d 446, 450

(Tex. Crim. App. 2001); Saldana v. State , 150 S.W.3d 486, 489 (Tex. App.--Austin 2004, no pet.);

43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice And Procedure § 38.14

(West Supp. 2008).

4. The Guzman addition to the rather straight forward standard above is described in Amador

v. State , 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) as follows:

Appellate courts must give almost total deference to a trial court's determination of

the historical facts that the record supports especially when the trial court's fact

findings are based on an evaluation of credibility and demeanor. This "deferential

standard of review in Guzman also applies to a trial court's determination of

historical facts when that determination is based on a videotape recording admitted

into evidence at a suppression hearing." Appellate courts also afford the same level

of deference to a trial court's ruling on "application of law to fact questions," or

"mixed questions of law and fact," if the resolution of those questions turns on an

evaluation of credibility and demeanor. The appellate courts review de novo "mixed

questions of law and fact" that do not depend upon credibility and demeanor.

Id . at 673; see also Montanez v. State , 195 S.W.3d 101, 109 (Tex. Crim. App. 2006).

Claiming it to be consistent with the above described standard of review, the Texas Court

of Criminal Appeals has recently restated the standard in State v. Kelly , 204 S.W.3d 808 (Tex. Crim.

App. 2006) by stating:

In reviewing a trial court's ruling on a motion to suppress, an appellate court

must view the evidence in the light most favorable to the trial court's ruling. When

a trial court makes explicit fact findings, the appellate court determines whether the

evidence (viewed in the light most favorable to the trial court's ruling) supports these

fact findings. The appellate court then reviews the trial court's legal ruling de novo

unless the trial court's supported-by-the record explicit fact findings are also

dispositive of the legal ruling.

The appellate standard of review is very similar when the record is silent on the

reasons for the trial court's ruling or when the trial court makes no explicit fact

findings and neither party has timely requested findings and conclusions from the

trial court. Under these circumstances, the appellate court implies the necessary fact

findings that would support the trial court's ruling if the evidence (viewed in the light

most favorable to the trial court's ruling) supports these implied fact findings. The

appellate court then reviews the trial court's legal ruling de novo unless the

supported-by-the-record implied fact findings are also dispositive of the legal ruling.

Id . at 818 (citations omitted); see also id . at 819, n.21. For a general discussion of the standard, see

Ford v. State , 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).

5. Tex. Code Crim. Proc. Ann. art. 28.01(6) (West 2006).

6. An objection must be timely made with sufficient specificity to make the trial court

aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A); Broxton v. State , 909 S.W.2d 912,

918 (Tex. Crim. App. 1995); Morrison v. State , 71 S.W.3d 821, 826 (Tex. App.--Corpus Christi

2002, no pet.). A pretrial motion to suppress evidence must meet all the requirements of

Rule 33.1(a)(1)(A) of the Texas Rules of Appellate Procedure. See Krause v. State , 243 S.W.3d 95,

102 (Tex. App.--Houston [1st Dist.] 2007, pet. ref'd).

7. To preserve error for appellate review, the point of error must comport with the

objection made at trial. Wilson v. State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Tejos v. State ,

243 S.W.3d 30, 48 (Tex. App.--Houston [1st Dist.] 2007, pet. ref'd). A trial objection based on

one legal theory may not be used to support a different legal theory on appeal. Delamora v . State ,

128 S.W.3d 344 , 363 n.11 (Tex. App.--Austin 2004, pet. ref'd).

8. Both parties assert in their briefs that it was January 14, 2005, but the record does not

support these assertions. Officer Allen Brown gave no date or time in his testimony. Appellant

simply stated that the incident occurred about nine o'clock on a night in January 2005. We glean

elsewhere from the record that it was possibly January 13, 2005.

9. Appellant in his testimony acknowledged that the front door was in need of repair--a hinge

needed to be replaced or repaired.

10. The items described by Officer Brown were on the dining room table and a coffee table.

Photographs of both tables were introduced as the items described.

11. The trial court later in open court orally amended its findings to reflect that there were not

any "no trespassing" signs reasonably likely to come to the attention of the officers. See Tex. Penal

Code Ann. § 30.05 (b)(2)(C) (West Supp. 2008).

12. The search warrant and affidavit attached to the State's brief were never marked for

identification, offered or introduced in evidence, or shown to have been placed in the possession of

the clerk or court reporter and was not designated as a part of the appellate record.

13. "[P]robable cause is a flexible, common-sense standard. It merely requires that the facts

available to the officer would warrant a man of reasonable caution in the belief, that certain items

may be contraband or stolen property or useful as evidence of a crime." Texas v. Brown , 460 U.S.

730, 742 (1983) (citations omitted).

14. The current code is cited for convenience. The law in the provisions cited has not changed

since January 2005.

15. This latter statement came as an oral amendment to the findings of fact.

16. It is noted that appellant does not in either his suppression motion or his appellate brief

specify, point out, or list what evidence he is claiming should have been suppressed.